GUIDANCE ON PRESIDENTIAL RECORDS - National Archives

GUIDANCE ON

PRESIDENTIAL

RECORDS

from the National Archives and Records Administration

from the Archivist

The National Archives and Records Administration (NARA) has long had a special relationship with the incoming Presidential Administration, including providing archival and records management guidance and support to the White House upon request. This relationship continues throughout the Administration, until the Presidential records are transferred into the National Archives for permanent preservation in our President Library system.

As a member of the President's White House staff, you will be creating Presidential records governed by the Presidential Records Act of 1978. The PRA places a number of recordkeeping requirements and responsibilities on the President and his staff for maintaining, preserving, and disposing of Presidential records. The information in this guidance will help you to carry out your dayto-day responsibilities, as well as to correctly fulfill obligations mandated by the PRA and to ensure that posterity has a full documentation of your Presidential Administration. This guidance also illustrates how NARA can assist the President and the White House staff in a variety of ways to fully document this Presidential Administration's unique history.

I would like to welcome you on behalf of NARA as you begin a new Presidential Administration. We hope this guidance serves as a starting point for a long and productive relationship between the National Archives and the White House, and we look forward to working with you.

DAVID S. FERRIERO Archivist of the United States

How the Presidential Records Act Affects the President, Vice President, and White House Staff During the Administration

Overview

The Presidential Records Act (PRA) of 1978, as amended, 44 U.S.C. ?? 2201-2209, governs the official records of Presidents and Vice Presidents created on or received after January 20, 1981. The PRA changed the legal ownership of the official records of the President from private to public.

The PRA established a new statutory structure under which Presidents must manage their records. The Presidential Records Act:

Defines and states public ownership of the records; Places the responsibility for the custody and management of incumbent Presidential records with the

President; Allows the incumbent President to dispose of records that no longer have administrative, historical,

informational, or evidentiary value, once the Archivist of the United States has provided his written views on the proposed disposal; Requires that the President and the President's staff take all practical steps to file personal records separately from Presidential records; Establishes a process for public access to and restriction of Presidential records. Specifically, the PRA allows for public access to Presidential records, including through the Freedom of Information Act (FOIA), beginning five years after the end of the Administration, but allows the President to invoke as many as six specific restrictions to public access for up to twelve years. The PRA also establishes procedures for Congress, courts, and subsequent Administrations to obtain "special" access to records that remain closed to the public. (A chart describing these access provisions and restrictions is attached.) The procedures for privilege review by the incumbent and former Presidents are established by the PRA, Executive order 13489 and NARA's regulations; Requires that Vice Presidential records are to be treated in the same way as Presidential records.

Presidential records are defined as:

"documentary materials, or any reasonably segregable portion thereof, created or received by the President, the President's immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President." [44 U.S.C. ? 2201(2)].

These records can be in any media, including textual, audiovisual, and electronic.

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Personal records are defined as:

"documentary materials or any reasonably segregable portion thereof, of a purely private or nonpublic character, which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President" and which include "diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business," "private political associations" and "materials relating exclusively to the President's own election to the office of the Presidency" [44 U.S.C. ? 2201(3)].

Personal records remain the personal property of the President or the record creator.

Records created by the President-elect and the transition team are also considered personal records. To the extent that these records are received and used after the inauguration by the incoming Presidential Administration, they may become Presidential or Federal records. Former Presidents have traditionally donated these personal transition records to the National Archives and Records Administration for deposit in their Presidential Library.

Who creates Presidential records?

The PRA applies to records created by components of the Executive Office of the President (EOP) that solely advise and assist the President. These components are not covered by the Federal Records Act. Even within the EOP, some components generate Federal records, while others generate Presidential records. Among the components of the Executive Office of the President that create Presidential records are:

The White House Office The Office of the Vice President The Office of Policy Development The Council of Economic Advisors The National Security Council The President's Foreign Intelligence Advisory Board The President's Intelligence Oversight Board The National Economic Council The Office of Administration

Other EOP components generate Federal records that are governed by the Federal Records Act. Among the EOP offices that generate Federal records are:

The Office of Management and Budget The Office of the United States Trade Representative The Council on Environmental Quality The Office of Science and Technology Policy The Office of National Drug Control Policy

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NARA also works with those offices that create Federal records to ensure their proper maintenance and preservation. More information on managing Federal records can be found at NARA's web site records-mgmt.

Records management requirements

The Presidential Records Act gives records management authority for incumbent Presidential records to the President, and states that personal records should be kept separate upon their creation or receipt from the Presidential record files [44 U.S.C. ? 2203(b)]. The Office of the White House Counsel generally provides PRA policy guidance. Although NARA has limited records management authority over incumbent Presidential records, NARA routinely provides records management guidance based on its institutional knowledge and expertise to the incumbent Administration upon request.

White House staff responsible for maintaining file systems must be trained to keep personal records separate from Presidential records at the point of creation. Once items have been mixed, it becomes difficult to determine record status. Since the President has the discretion to determine what is personal material, this determination should be made during the incumbent's term of office rather than after the records are transferred to NARA.

Disposal authority

The PRA states that the incumbent President must obtain the views in writing of the Archivist before disposing of any Presidential records. This authority is routinely used to dispose of the extremely large volumes of public mail that the President and Vice President receive on a daily basis. Under certain circumstances, the Archivist must inform Congress of the proposed disposal. In these cases, the President must wait at least sixty legislative days before disposing of them. After the President's term, the Archivist has authority to dispose of Presidential records, following a public notice and comment period [44 U.S.C. 2203(c)-(f)].

Notice and review before opening or accessing records of former Presidents

NARA notifies the White House Counsel's Office of requests for records of former Presidents (1) that are not currently opened to the public or are being requested under one of the categories of exceptions to restrictions provided by the Presidential Records Act ("special access requests") and (2) that are being proposed for opening to the public. NARA also notifies the representatives of the former President and Vice President who created these records.

The notification procedures for public release are found at 44 U.S.C. ? 2208 and described in NARA's implementing regulations (36 CFR Part 1270). Notification procedures for special access requests are outlined in Executive Order 13489 and in 36 CFR Part 1270. The purpose of the notification is to give Counsel, on behalf of the incumbent President, the right to assert applicable constitutionally based privileges to prohibit access to or release of Presidential or Vice Presidential records. Although these records were

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